(j) digitalisation and automation;
(k) pharmaceuticals and medical devices; and
(l) any other areas of cooperation mutually agreed by the Parties.
3. The Parties shall seek to identify and develop innovative cooperation activities that provide added value to trade and investment between the Parties.
Article 13.3. Memorandum of Understanding
This Chapter shall be implemented on the basis of a Memorandum of Understanding on Cooperation and Capacity Building between the EFTA States and Malaysia. It shall be signed in parallel with this Agreement.
Article 13.4. Forms of Cooperation
1. The Parties recognise that cooperation and capacity building activities may be undertaken between two or more Parties on a mutually agreed basis and shall seek to complement and build on existing agreements or arrangements between them.
2. Cooperation and capacity building provided by the EFTA States for the implementation of this Chapter shall be carried out through programmes administered by the EFTA Secretariat, without prejudice to other cooperation and capacity building programmes that the Parties may develop in fields covered by this Agreement.
3. Cooperation and capacity building provided by Malaysia for the implementation of this Chapter shall be administered by the Ministry of Investment, Trade and Industry of Malaysia, without prejudice to other cooperation and capacity building programmes that the Parties may develop in fields covered by this Agreement.
4. The Parties shall cooperate with the objective of identifying and employing the most effective methods and means for the implementation of this Chapter. To this end they may, if appropriate, coordinate efforts with relevant international organisations.
5. The Parties shall endeavour to encourage technical, technological and scientific cooperation in a manner as agreed by the Parties and in accordance with their domestic laws and regulations.
6. Means of cooperation and capacity building may include:
(a) exchange of information, training, visits, exchange of experts and internships, and facilitating contacts between relevant institutions and economic operators;
(b) facilitation of dialogue and exchange of experiences between relevant institutions and economic operators involved in trade and investment promotion;
(c) implementation of joint actions such as seminars, workshops, meetings, training sessions, and outreach;
(d) promotion and encouragement of cooperation and matchmaking between academia, institutions dedicated to research, and private sectors of the Parties;
(e) technical and administrative assistance; and
(f) other forms of cooperation as mutually agreed by the Parties.
Article 13.5. Costs of Cooperation
1. The implementation of cooperation under this Chapter shall be subject to the availability of funds and resources of each Party.
2. Costs of cooperation under this Chapter shall be borne by the Parties within the limits of their own capacities and through their own channels, in a manner to be mutually agreed upon by the Parties.
Article 13.6. Sub-Committee on Cooperation and Capacity Building
1. For the purposes of effective implementation and operation of this Chapter, the Parties hereby establish a Sub-Committee on Cooperation and Capacity Building (Cooperation Sub-Committee), composed of government representatives of each Party.
2. The functions of the Cooperation Sub-Committee shall be to:
(a) review the implementation or operation of this Chapter and receiving reports from Parties on their involvement with technical activities under this Agreement;
(b) facilitate the exchange of information between Parties in areas including, but not limited to, experiences and lessons learned through cooperation and capacity building activities undertaken between them;
(c) discuss and consider issues or proposals for further cooperation and capacity building activities;
(d) initiate and undertake collaboration as appropriate to enhance and facilitate public-private partnerships in cooperation and capacity building activities;
(e) Invite, as appropriate, private sector entities, non-governmental organisations or other relevant institutions, to assist in the development and implementation of cooperation and capacity building activities;
(f) establish ad hoc working groups, as appropriate, which may include government or non-government representatives or both;
(g) coordinate with other sub-committees and working groups established under this Agreement, as appropriate;
(h) develop rules of procedures for the conduct of its work, as may be required by the Cooperation Sub-Committee; and
(i) engage in other activities as the Parties may agree upon.
3. The Cooperation Sub-Committee shall meet within one year of the date of entry into force of this Agreement, and thereafter as necessary.
4. The Cooperation Sub-Committee shall act by consensus.
5. The Cooperation Sub-Committee shall produce an agreed record of its meetings, including recommendations and next steps and, as appropriate, report to the Joint Committee.
6. The Cooperation Sub-Committee shall respect existing consultation mechanisms between Parties and, as appropriate, share information and coordinate with such mechanisms to ensure effective and efficient implementation of cooperative activities and projects.
Article 13.7. Contact Points
The Parties shall exchange names and addresses of designated contact points for matters pertaining to cooperation under this Chapter.
Article 13.8. Non-Application of Dispute Settlement
No Party shall have recourse to dispute settlement under Chapter 15 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 14. INSTITUTIONAL PROVISIONS
Article 14.1. Establishment of the EFTA-Malaysia Joint Committee
The Parties hereby establish the EFTA-Malaysia Joint Committee (Joint Committee) comprising representatives of each Party.
Each Party shall be responsible for the composition of its delegation.
Article 14.2. Functions of the Joint Committee
1. The Joint Committee shall:
(a) consider and supervise the implementation of this Agreement;
(b) keep under review the possibility of further removal of barriers to trade and other restrictive measures concerning trade between the Parties;
(c) oversee the further elaboration of this Agreement;
(d) supervise the work of all sub-committees and working groups established under this Agreement;
(e) endeavour to resolve disputes that may arise regarding the interpretation or application of this Agreement; and
(f) consider any other matter as agreed by the Parties.
2. The Joint Committee may decide to set up such sub-committees and working groups as it considers necessary to assist it in accomplishing its tasks. Except where otherwise provided for in this Agreement, the sub-committees and working groups shall work under a mandate established by the Joint Committee. The Joint Committee may refer matters to, or consider matters raised by, the sub-committees or working groups. The Joint Committee may merge or dissolve any sub-committees or working groups it has established.
3. The Joint Committee may take decisions as provided for in this Agreement. On other matters, the Joint Committee may make recommendations to the Parties.
4. The Joint Committee shall take decisions and make recommendations by consensus. The Joint Committee may also adopt decisions and make recommendations regarding issues related only to Malaysia and one or more EFTA States. In such cases, consensus shall only involve the Parties concerned, and the decision or recommendation shall apply only to those Parties.
5. If a representative of a Party in the Joint Committee has accepted a decision subject to the fulfilment of domestic legal requirements, the decision shall enter into force on the first day of the third month following the date that the last Party, notifies the Depositary that its domestic legal requirements have been fulfilled, unless otherwise specified in the decision.
6. The Joint Committee shall meet within one year from the date of entry into force of this Agreement. Thereafter, it shall meet whenever necessary but normally every two years. Its meetings shall be chaired jointly by one of the EFTA States and Malaysia. Meetings of the Joint Committee shall be held in person or, if agreed, by technological means.
7. Each Party may request at any time, through a notice in writing to the other Parties, that a special meeting of the Joint Committee be held. Such a meeting shall take place within 30 days of receipt of the request, unless the Parties agree otherwise.
8. The Joint Committee shall establish its rules of procedure.
Article 14.3. Contact Points
Each Party shall designate a contact point or points to facilitate communications among the Parties.
Chapter 15. DISPUTE SETTLEMENT
Article 15.1. Scope and Coverage
1. Except as otherwise provided for in this Agreement, this Chapter shall apply to the settlement of disputes between the Parties regarding the interpretation and application of this Agreement.
2. Subject to Article 15.2 (Choice of Forum), this Chapter is without prejudice to the rights of the Parties to have recourse to dispute settlement procedures available under other agreements to which they are parties.
Article 15.2. Choice of Forum
1. Where a dispute regarding the same matter arises under this Agreement and under the WTO Agreement, the complaining Party may select the dispute settlement procedure in which to settle the dispute. (23)
2. The complaining Party shall notify in writing all other Parties of its intention to select a particular forum before doing so.
3. The forum selected shall be used to the exclusion of the other.
4. For the purposes of paragraph 1, dispute settlement procedures under the WTO Agreement are deemed to be selected by a Party’s request for the establishment of a panel under Article 6 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, whereas dispute settlement procedures under this Agreement are deemed to be selected upon a request for arbitration pursuant to paragraph 1 of Article 15.5 (Request for Establishment of the Arbitration Panel).
Article 15.3. Good Offices, Conciliation and Mediation
1. The Parties to the dispute may at any time agree to good offices, conciliation or mediation. They may begin and be terminated at any time.
2. If the Parties to the dispute agree, good offices, conciliation or mediation proceedings may continue while the dispute proceeds for resolution before an arbitration panel.
3. Proceedings involving good offices, conciliation and mediation and positions taken by the Parties to the dispute during these proceedings shall be confidential and without prejudice to their rights in any further proceedings.
Article 15.4. Consultations
1. The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to reach a mutually satisfactory solution of any matter raised in accordance with this Article.
2. A Party may request in writing consultations with another Party if it considers that a measure is inconsistent with this Agreement. The Party requesting consultations shall at the same time notify the other Parties in writing of the request. The Party to which the request is made shall reply to the request within ten days from the date of receipt of the request for consultations. If the Parties requesting and receiving the request for consultation agree, the consultations may take place in the Joint Committee.
3. Consultations may be held in person or by any technological means available to the consulting Parties.
4. Consultations shall commence within 30 days from the date of receipt of the request for consultations. Consultations on urgent matters, including those on perishable goods, shall commence within 15 days from the date of receipt of the request for consultations.
5. The consulting Parties shall provide sufficient information to enable a full examination of whether the measure is inconsistent with this Agreement and treat as confidential any information designated as such by the Party providing the information. The request for consultation shall include the reasons for the request, including the identification of the measure at issue and an indication of the legal basis for the complaint. The consulting Parties shall make available for the consultations personnel who have expertise in the matter.
6. The consultations shall be confidential and without prejudice to the rights of the Parties in any further proceedings.
7. Whenever a Party other than the consulting Parties considers that it has an interest in the consultations, such Party may notify the consulting Parties no later than seven days after the date of receipt of the copy of the request for consultations referred to in paragraph 2, of its desire to be joined in the consultations. The notifying Party shall simultaneously provide a copy of the notification to the other Parties.
8. The consulting Parties shall inform the other Parties of any mutually agreed resolution of the matter.
Article 15.5. Request for Establishment of the Arbitration Panel
1. The complaining Party may request the establishment of an arbitration panel by means of a written request to the Party complained against, if:
(a) the Party complained against does not reply to the request within ten days in accordance with paragraph 2 of Article 15.4 (Consultations);
(b) the Party complained against does not enter into consultations within 30 days, or 15 days for urgent matters including those on perishable goods, from the date of receipt of the request for consultations in accordance with paragraph 3 of Article 15.4 (Consultations);
(c) the consultations referred to in Article 15.4 (Consultations) fail to settle a dispute within 60 days, or 30 days for urgent matters including those on perishable goods, from the date of receipt of the request for consultations by the Party complained against.
2. A copy of this request shall be communicated to the other Parties.
3. The request for the establishment of an arbitration panel made pursuant to paragraph 1 shall identify the specific measure at issue and provide a brief summary of the legal and factual basis of the complaint sufficient to present the problem clearly.
Article 15.6. Terms of Reference
1. Unless the Parties to the dispute otherwise agree within 20 days from the date of receipt of the request for the establishment of the arbitration panel, the terms of reference for the arbitration panel shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an arbitration panel pursuant to Article 15.5 (Request for the Establishment of the Arbitration Panel) and issue a written report, to make findings of law and fact together with the reasons, as well as recommendations, if any, for the resolution of the dispute."
2. The recommendations of the arbitration panel cannot add to or diminish the rights and obligations of the Parties to the dispute provided in this Agreement.
Article 15.7. Composition of the Arbitration Panel
1. An arbitration panel shall consist of three arbitrators. In the written request pursuant to Article 15.5 (Request for Establishment of Arbitration Panel), the complaining Party shall appoint one arbitrator. Within 30 days from the date of receipt of the request, the Party complained against shall appoint another arbitrator.
2. The Parties to the dispute shall designate by common agreement the third arbitrator who shall chair the arbitration panel. If the Parties to the dispute have not reached the agreement on the third arbitrator within 30 days from the appointment of the second arbitrator, the two arbitrators appointed in accordance with paragraph 1 shall, within 15 days, designate the third arbitrator. If any arbitrator has not been appointed within 75 days of receipt of the request referred to in paragraph 1, either Party to the dispute may request the Secretary-General of the Permanent Court of Arbitration (PCA) to make the necessary appointments. In the event where the Secretary-General of the PCA is not able to appoint the third arbitrator or is a national or permanent resident of a Party to the dispute, any Party to the dispute may request the Deputy Secretary-General of the PCA or the next person in line who is not a national or permanent resident of a Party to the dispute to make the necessary appointments.
3. All arbitrators shall have specialised knowledge or experience in law, international trade or other matters relating to this Agreement or in the resolution of disputes arising under international trade agreements. They shall be independent and impartial, including serving in their individual capacities and not be affiliated with, neither take instructions from any Party to the dispute nor have dealt with the case in any capacity. A prospective arbitrator shall disclose to those who approach him or her in connection with his or her possible appointment any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, once appointed, shall disclose such circumstances to the Parties to the dispute unless they have already been informed by him or her of these circumstances. An appointed arbitrator shall continue to disclose any such circumstances as soon as he or she becomes aware of them.
4. The chair of the arbitration panel shall not be a national, permanent resident nor have his or her usual place of residence in a Party to the dispute.
5. The date of establishment of the arbitration panel shall be the date on which the last arbitrator is appointed.
6. Any arbitrator may be challenged if circumstances give rise to justifiable doubts as to the arbitrator?s impartiality, or independence. If a Party to the dispute does not agree with the challenge or the challenged arbitrator does not withdraw, the Party making the challenge may request the Secretary-General of the PCA to decide on the challenge. If the Secretary-General is unable to act or is a national or permanent resident of a Party to the dispute, the Party making the challenge may request the Deputy Secretary-General of the PCA or the next person in line who is not a national or permanent resident of a party to the dispute to make a decision on the challenge.
7. If an arbitrator resigns, is removed or becomes unable to act, a successor shall be appointed in the same manner as prescribed for the appointment of the original arbitrator. The work of the arbitration panel shall be suspended pending appointment of the successor.
8. Where more than one Party requests the establishment of an arbitration panel relating to the same matter or where the request involves more than one Party complained against, and whenever feasible, a single arbitration panel should be established to examine complaints relating to the same matter.
9. A Party which is not a Party to the dispute shall be entitled, on delivery of a written notice to the Parties to the dispute, to make written submissions to the arbitration panel, receive written submissions, including annexes, from the Parties to the dispute, attend hearings and make oral statements.
Article 15.8. Procedures of the Arbitration Panel
1. Unless otherwise specified in this Agreement or agreed between the Parties to the dispute, the procedures of the arbitration panel shall be governed by Articles 2 and 4 and Section III (except Article 26) and Section IV (except Articles 35 and 37) of the Optional Rules for Arbitrating Disputes between Two States of the Permanent Court of Arbitration, as effective from 20 October 1992, mutatis mutandis.
2. The arbitration panel shall examine the matter referred to it in the request for the establishment of an arbitration panel in the light of the relevant provisions of this Agreement which the arbitration panel shall interpret in accordance with customary rules of interpretation of public international law.
3. The hearings of the arbitration panel shall be open to the public, unless the Parties to the dispute decide otherwise. The arbitration panel shall close the hearing for the duration of any discussions of confidential information.
4. There shall be no ex parte communications with the arbitration panel concerning matters under its consideration.
5. The arbitration panel may hire up to three assistants, unless otherwise required by the arbitration panel or agreed by the Parties to the dispute.
6. All information or documents submitted by a Party to the dispute to the arbitration panel shall, at the same time as it is submitted to the arbitration panel, be transmitted by that Party to the other Party to the dispute.
7. The Parties to the dispute and the arbitration panel shall treat as confidential information and documents submitted to the arbitration panel which has been designated as confidential by the submitting Party.
Any Party may make public statements as to its own position or submissions regarding the dispute. Where a Party to the dispute has provided information or written submissions designated to be confidential, that party to the dispute shall, within 30 days of a request of the other Party to the dispute, provide a non-confidential summary of the information or written submissions which may be disclosed to the public.
8. The deliberations of the arbitration panel shall be kept confidential. The arbitration panel shall take its decisions by consensus. In the event where the arbitration panel is unable to reach a consensus, it may take its decisions by majority vote. Any member of the arbitration panel may furnish separate opinions on matters not unanimously agreed. The arbitration panel shall not disclose which members of the arbitration panel are associated with majority or minority opinions.
The reports of the arbitration panel shall be drafted without the presence of the Parties to the dispute.
Article 15.9. Arbitration Panel Reports
1. The arbitration panel shall normally issue to the Parties to the dispute an initial report within 90 days of the date of establishment of the arbitration panel. The initial report should be issued no later than 120 days after the date of the establishment of the arbitration panel.
2. Any party to the dispute may submit written comments to the arbitration panel on its initial report within 14 days of the receipt of the report. After considering any written comments by the Parties to the dispute on the initial report, the arbitration panel may reconsider its report and make any further examination it considers appropriate.
3. The arbitration panel shall normally issue to the Parties to the dispute a final report within 30 days from the date of receipt of the initial report.
The ruling should be issued no later than 60 days after the date of receipt of the initial report.
4. The initial and final reports shall contain the findings of facts, the applicability of the relevant provisions, a descriptive part summarising the submissions and arguments of the Parties to the dispute, the reasons for the arbitration panel's findings and rulings as well as recommendations, if any, for the resolution of the dispute and the implementations of the ruling.
5. The final report, as well as any rulings under Articles 15.11 (Implementation of the Final Report) and 15.12 (Compensation and Suspension of Benefits), shall be communicated to the Parties and shall, subject to the protection of confidential information, be made public.
6. The report and any ruling of the arbitration panel shall be final and binding on the Parties to the dispute.
7. On matters of urgency, including those regarding perishable goods, the arbitration panel shall make every effort to issue its initial and final reports to the Parties to the dispute within half of the respective time periods under paragraphs 1 and 3.
Article 15.10. Suspension or Termination of Proceedings
1. The Parties to the dispute may agree that an arbitration panel suspends its work at any time for a period not exceeding 12 months from the date of such agreement. In the event of such a suspension, the timeframes regarding the work of the arbitration panel shall be extended by the amount of time that the work was suspended. If the work of an arbitration panel has been suspended for more than 12 months, the authority for the establishment of the arbitration panel shall lapse unless the Parties to the dispute agree otherwise. This shall not prejudice the rights of the complaining Party to request at a later stage, the establishment of an arbitration panel on the same matter.
2. A complaining Party may withdraw its complaint at any time before the initial report has been issued. Such withdrawal is without prejudice to its right to introduce a new complaint regarding the same issue at a later point in time, no earlier than 12 months from the date of withdrawal.
3. The Parties to the dispute may agree to terminate the proceedings of the arbitration panel by jointly notifying the chair of the arbitration panel at any time before the issuance of the final report to the Parties to the dispute.
4. An arbitration panel may, at any stage of the proceedings prior to the issuance of the final report, propose that the Parties to the dispute seek to settle the dispute amicably.
Article 15.11. Implementation of the Final Report
1. The Party complained against shall promptly comply with the ruling in the final report. Where it is not practicable to comply immediately, the Party complained against shall comply with the ruling within a reasonable period of time. The Parties to the dispute shall endeavour to agree on a reasonable period of time to do so. In the absence of such agreement within 45 days from the date of the issuance of the final report, a party to the dispute may request the original arbitration panel to determine the length of the reasonable period of time, in light of the particular circumstances of the case. The ruling of the arbitration panel shall normally be given within 60 days from the date of receipt of that request.
2. The Party complained against shall notify the complaining Party of the measure adopted in order to comply with the ruling in the final report, as well as provide a detailed description of how the measure ensures compliance sufficient to allow the complaining Party to assess the measure.
3. In case of disagreement as to the existence of a measure complying with the ruling in the final report or to the consistency of that measure with the ruling, such disagreement shall be decided by the same arbitration panel upon the request of a party to the dispute before compensation can be sought or suspension of benefits can be applied in accordance with Article 15.12 (Compensation and Suspension of Benefits). The ruling of the arbitration panel shall normally be rendered within 90 days from the date of receipt of the request.
Article 15.12. Compensation and Suspension of Benefits
1. If the Party complained against does not comply with a ruling of the arbitration panel referred to in Article 15.11 (Implementation of the Final Report), that Party shall, if so requested by the complaining Party, enter into consultations with a view to agreeing on mutually acceptable compensation. If no such agreement has been reached within 20 that Party shall, if so requested by the complaining Party, enter into consultations with a view to agreeing on mutually acceptable compensation. If no such agreement has been reached within 20 days from the date of receipt of the request, the complaining Party shall be entitled to suspend the application of benefits granted under this Agreement but only equivalent to those affected by the measure that the arbitration panel has found to be inconsistent with this Agreement.
2. The complaining Party shall notify the Party complained against of the benefits which it intends to suspend, the grounds for such suspension and when suspension will commence, no later than 30 days before the date on which the suspension is due to take effect. Within 15 days from the date of receipt of that notification, the Party complained against may request the original arbitration panel to rule on whether the benefits which the complaining Party intends to suspend are equivalent to those affected by the measure found to be inconsistent with this Agreement, and whether the proposed suspension is in accordance with paragraphs 1 and 2.
The ruling of the arbitration panel shall normally be given within 45 days from the date of receipt of that request. Benefits shall not be suspended until the arbitration panel has issued its ruling.
3. In considering what benefits to suspend, the complaining Party should first seek to suspend benefits in the same sector or sectors as that affected by the measure that the arbitration panel has found to be inconsistent with this Agreement. The complaining Party that considers it is not practicable or effective to suspend benefits in the same sector or sectors may suspend benefits in other sectors.
4. Compensation and suspension of benefits shall be temporary measures and shall only be applied by the complaining Party until the measure found to be inconsistent with this Agreement has been withdrawn or amended so as to bring it into conformity with this Agreement, or until the Parties to the dispute have resolved the dispute otherwise. Neither compensation nor suspension is preferred to full elimination of the non-conformity as determined in the report of the arbitration panel referred to in Article 15.9 (Arbitration Panel Report).
5. At the request of a party to the dispute, the original arbitration panel shall rule on the conformity with the final report of any implementing measures adopted after the suspension of benefits and, in light of such ruling, whether the suspension of benefits should be terminated or modified. The ruling of the arbitration panel shall normally be given within 30 days from the date of receipt of that request and shall be promptly complied with.
Article 15.13. Other Provisions
1. Whenever possible, the arbitration panel referred to in Articles 15.11 (Implementation of the Final Report) and 15.12 (Compensation and Suspension of Benefits) shall comprise of the same arbitrators who issued the final report. If this is not possible, the replacement arbitrator shall be appointed pursuant to Article 15.7 (Composition and Establishment of Arbitration Panel).
2. Any time period mentioned in this Chapter may be modified by mutual agreement of the Parties to the dispute.
3. When an arbitration panel considers that it cannot comply with a time frame imposed on it under this Chapter, it shall inform the Parties to the dispute in writing of the reasons for the delay and provide an estimate of the additional time required. Any additional time required should not exceed 30 days.
4. A written submission, request, notice or other document shall be considered received when it has been delivered to the addressee through diplomatic channels in the territory of the addressee. At the same time, a copy of these documents shall be provided in electronic format to the designated contact points. The contact points shall be notified to the Joint Committee.
Article 15.14. Language
1. All proceedings pursuant to this Chapter shall be conducted in English.